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People v. Sharpe

California Court of Appeals, Third District, Butte

April 7, 2017

THE PEOPLE, Plaintiff and Respondent,
v.
JOSEPH ROBERT SHARPE, Defendant and Appellant.

         CERTIFIED FOR PARTIAL PUBLICATION[*]

         APPEAL from a judgment of the Superior Court of Butte County, No. CM039909 Michael P. Candela, Judge. Affirmed as modified.

          C. Matthew Missakian, under appointment by the Court of Appeal, for Defendant and Appellant.

          Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez, Stephen G. Herndon, and Kevin M. Cornwall, Deputy Attorneys General, for Plaintiff and Respondent.

          NICHOLSON, J.

         Defendant Joseph Robert Sharpe, with several other men, went to someone else's marijuana garden in the night to steal the plants. Confronted by the owner, the men knocked the owner down and fled. The owner pursued until one of the men brandished a gun. A few minutes later, defendant and the other men rammed the owner's truck. Convicted of robbery and sentenced to state prison for six years, defendant appeals.

         On appeal, defendant asserts the judgment must be reversed based on several arguments. We conclude those arguments have no merit.[1] Defendant also asserts that the trial court abused its discretion in making the restitution award because it awarded the victim both (1) the decrease in fair market value of the truck resulting from the damage caused by the ramming and (2) the cost to repair the truck. (See Pen. Code, § 1202.4, subd. (f)(3)(A) [allowing court to use fair market value method or cost of repair method to determine restitution].) We conclude that the trial court could not apply both methods because it resulted in a windfall to the victim. We also conclude that the trial court improperly calculated restitution by awarding the victim the salvage value of the truck retained by the victim.

         FACTS

         Jonah Smith lived on property in Butte County where he and two other people grew medical marijuana in a garden enclosed by a fence and gate. In the early morning hours of a day during harvest season, Smith was sleeping in his camp trailer next to the marijuana garden when he was awakened by noise from the garden. In the darkness, he saw four or five men in the garden. Smith went outside with his flashlight to the open gate of the marijuana garden and yelled at the men. The men in the garden ran out of the garden as Smith was running in, and Smith was knocked to the ground. The men ran down the long (about 200 feet) gravel driveway toward the road. Smith recognized one of the men as defendant and pursued him down the driveway.

         Smith saw that the people running down the driveway in the darkness were carrying things, but he did not see marijuana in their hands.

         While Smith was chasing defendant, another man, who was wearing a mask, came toward Smith brandishing a gun, so Smith stopped and walked quickly back up the driveway. The men who had been in the garden got into a van at the end of the driveway.

         Smith got into his truck and drove to a local store. When he got there, the van that had been at his property and a white car, driven by the man who had brandished the gun at him at the property, both drove toward him and collided with his truck, disabling the truck. Smith fled to a ditch, and shots were fired at him.

         When Smith returned to his property, he found that the chain on the gate at the end of the driveway had been cut. He called 911, and a deputy sheriff responded. Eleven marijuana plants had been cut down, and parts of the plants were scattered. A pile of marijuana was outside the fence of the marijuana garden. After the sun rose, Smith saw, in his words, “little pieces of marijuana cascaded down [the] driveway like bread crumbs.”

         At trial, defendant denied being present during the incident at the marijuana garden, but none of his contentions on appeal require us to relate the additional evidence presented of his involvement in the incident.

         PROCEDURE

         The district attorney charged defendant by information with one count of robbery (Pen. Code, § 211), with an allegation that defendant served a prior prison term (Pen. Code, § 667.5). A jury found defendant guilty of robbery, and the trial court found true the prior prison term allegation.

         The trial court sentenced defendant to five years in state prison for the robbery, with an additional year for the prior prison term. The court ordered defendant to pay $23, 222.50 in restitution to Smith for damage caused, including to Smith's truck.

         Additional facts and procedural history are related in the Discussion as they become relevant.

         DISCUSSION

         I

         Sufficiency of Evidence

         Defendant contends that the evidence was insufficient to support the robbery conviction because the jury could not reasonably infer that defendant and the other men were carrying marijuana when Smith was knocked down and the gun was brandished. He claims there is no evidence of the use of force or fear when the marijuana was either taken or asported. To the contrary, the evidence is sufficient to support a reasonable inference that the men were carrying marijuana when Smith was knocked down and the gun was brandished.

         “In reviewing a sufficiency of evidence claim, the reviewing court's role is a limited one. ‘ “The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]” ' [Citations.]” (People v. Smith (2005) 37 Cal.4th 733, 738-739.) We must accept any reasonable inference the jury might have drawn from the evidence. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)

         Robbery requires force or fear in the taking of, or attempting to flee with, the property of another from or in the immediate presence of the victim. (Pen. Code, § 211; People v. Pham (1993) 15 Cal.App.4th 61, 65-66.) Force and fear are alternative elements. (Pen. Code, § 211.)

         Defendant claims that, although there was evidence of the use of force (knocking Smith down) and fear (in response to brandishing of the gun), there was no evidence that defendant or his coperpetrators were in the act of taking the marijuana or attempting to flee with it when force was applied or fear was caused. We disagree. The men were in the marijuana garden cutting the marijuana. They had already stacked some of it outside the garden. When Smith confronted them, they ran out of the garden and down the driveway. In the darkness, Smith could see that they had something in their hands, yet he testified that he did not see marijuana in their hands. In the morning, Smith saw that there were pieces of marijuana scattered down the driveway. Despite Smith's inability to identify what was in the men's hands as they were fleeing, it was reasonable for the jury to infer from the circumstances that the men had marijuana in their hands. Based on this inference, there was sufficient evidence that defendant and his coperpetrators used force and fear as they took and fled with the marijuana, thus supporting a robbery conviction.

         Defendant argues that “the circumstantial evidence suggested only that the perpetrators had been cutting and piling up marijuana to steal it, but from the moment Smith interrupted the theft their only aim was to get away.” However, as noted above, the circumstances also suggested that the perpetrators were carrying marijuana down the driveway.

         Defendant asserts that the sheriff's deputy did not see the marijuana scattered down the driveway. But Smith testified that he saw it.

         Defendant also asserts that precisely where in the driveway the marijuana was found was never established. But Smith testified he saw “little pieces of marijuana cascaded down [the] driveway like bread crumbs.”

         Defendant claims that there was no evidence concerning how or when the marijuana was deposited on the driveway. But a reasonable inference from the evidence is that the marijuana on the driveway was deposited there as the men fled.

         Defendant argues: “It would be rank speculation to leap from the evidence of marijuana pieces on the ground near the garden gate and plant pile (where pieces would have naturally fallen as the perpetrators hacked down 11 plants and their bamboo framing and piled up the marijuana) to the conclusion that some marijuana bits on the ground must have landed there because the perpetrators, in their rush to flee after being interrupted by Smith, were attempting to carry away marijuana but dropped some.”

         This argument does not give the evidence its due. Smith testified that there were pieces of marijuana scattered down the driveway. That there were also marijuana pieces by the pile of marijuana does not mean that the jury was constrained to believe that the spread of marijuana was limited to the pile by the garden or immediately around it.

         Since the jury could reasonably infer that the perpetrators were carrying marijuana as Smith confronted them and chased them down the driveway, the evidence was sufficient to support the robbery conviction.

         II

         Prosecutor's ...


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